Charter schools have become an increasingly popular alternative to traditional public schools in Texas and across the United States. But one question that has been raised is whether charter schools are considered arms of the state for, among other things, legal immunity purposes. In Texas, this question has been particularly controversial, with arguments on both sides of the debate.

The idea of charter schools originated in the 1990s as a way to provide more choices and flexibility in education. In Texas, charter schools are publicly funded but operate independently of traditional public schools. They are governed by a board of directors and are subject to many of the same laws and regulations as traditional public schools. However, they have more freedom in areas such as curriculum and staffing.

Some argue that because charter schools are funded by public money and are subject to many of the same laws and regulations as traditional public schools, they are effectively arms of the state. This argument is based on the idea that charter schools are essentially government entities that have been given more flexibility than traditional public schools.

Those who support this argument point to several factors that they believe support their position. For example, charter schools in Texas are required to follow the same academic standards as traditional public schools. They must also administer the same standardized tests and report their results to the state. Additionally, they are required to comply with many of the same state and federal regulations as traditional public schools.

Furthermore, charter schools in Texas are subject to oversight by the Texas Education Agency (TEA), which is responsible for ensuring that they are in compliance with state and federal laws. The TEA can revoke a charter school’s charter if it fails to meet certain standards.

On the other hand, those who argue that charter schools are not arms of the state point to the fact that they operate independently of traditional public schools. They are run by private organizations, not the government. They also argue that charter schools provide a valuable alternative to traditional public schools, particularly for students who are not succeeding in those schools.

Charter school supporters also point out that charter schools are not funded in the same way as traditional public schools. While they receive public money, they do not receive funding from property taxes, which is the primary source of funding for traditional public schools in Texas. 

However, despite the above, a recent Fifth Circuit case has actually answered this question for immunity purposes.  And the answer, as I predicted in a CLE presentation I did back in 2021 is no.   See Springboards to Educ., Inc. v. McAllen Indep. Sch. Dist., No. 21-40333, ___ F.4th ___, 2023 WL 2401349, at *3–6 (5th Cir. Mar. 8, 2023).  In that case, the Fifth Circuit examined the Clark factors as they relate to charter schools in Texas.  The Fifth Circuit found that the factors weighed against immunity.  Id. at 6 (“In sum, factors one and three favor sovereign immunity while factors two, four, five, and six do not. Balancing all the factors, and giving greater weight to factor two, we conclude that IDEA is not an arm of the state and does not share in Texas’s sovereign immunity.”).

This makes sense.  A private company should not be afforded the same immunity as the State of Texas.  

If you believe you have been discriminated against, please contact an attorney to discuss possible options.  The attorneys at Wiley Walsh, P.C. routinely represent employees of Charter schools in discrimination cases.  Consults can be booked online at www.wileywalsh.com or by calling our office at 512-271-5527.